My colleague and friend, Mike Maslanka, at Work Matters, pens a nice post about questions to pose to the employee plaintiff. See post. Mike’s post discusses good questions to ask the plaintiff. Mike generally represents employers. These questions would usually come during the deposition or the trial. His point is that the better questions for the employer to ask are not "home run" type questions, but the doubles and triples. "is this a fair summary?" As Mike points out, this question, often in a deposition, is not all that fair. The question often is slanted just a bit to favor the employer. The goal is to elicit testimony the employer can use to seek dismissal of the case or summary judgment.
"Take it to the limit one more time." Mike makes a valuable point here. He means the employer’s lawyer should look for ways to press the issue regarding personality conflicts. If he can show the employee was fired due to personality issues, then that undercuts discrimination or some other illegal motive playing a role. And, he hopes to show that the employee is unreasonable.
The plaintiff employee who cannot set aside his/her anger will surely lose. The employee needs to show some appreciation for the opposing point of view. "Niceness" does count in litigation. Ultimately, we all answer to a judge and jury for everything we do in a lawsuit. An employe (or employer) who comes across as unforgiving or unreasonable will lose. The jury does not understand the law very well, but they tend to understand human nature very well. They do not sympathize with plaintiffs who cannot get past the emotional pain.
Its a fine line the plaintiff employee must walk. S/he must be firm, but not cross. S/he must be "nice" but not easily pushed around during questioning. It is a difficult task. But, the employee who cannot set aside anger to some degree loses credibility.
Its a truism that applies elsewhere. In my time in the Army, some 28 years in the Army, Army Reserve and National Guard, personnel issues occurred with some frequency. "He said, she said" disputes were not unheard of. If one side could discuss the issues with some balance, that soldier gained credibility. Litigation is no different…….